]]>“My case was handled expeditiously and all my questions where answered in a timely manner. All in all, it was a positive experience.” S.V. on Partner Michael Macomber, Esq. Prior results do not guarantee similar outcomes.

Jury Decides City and Jamestown PD Partially Discriminated Against Former Detective

By, Mark GoshgarianOctober 2, 2014

MAYVILLE, N.Y. — Jurors took two hours Thursday to decide the City of Jamestown and its police department partially discriminated against former Jamestown Police Department Detective Timothy Wright. The verdict capped two days of testimony inside County Supreme Court.

“I am pleased with the jury’s verdict,” Wright said.

Wright filed suit against the city, claiming the police department didn’t promote him in 2003 and illegally pro-rated his vacation and comp time because he was working as an Army reservist.

“I’m extremely relieved, not only for me, but for my family and it’s a lot of stress on top of the job as being a police officer and a member of the Guard and the Reserve,” said Wright.

The jury found the city didn’t discriminate against Wright regarding the promotion and comp-time benefit, but jurors found Wright was entitled to his full vacation time benefit while he was overseas.

“That is where the disappointment comes in. I don’t believe the city discriminated against him in any way shape or form,” said Marilyn Fiore-Lehman, City of Jamestown Corporation Counsel.

City attorney Fiore-Lehman said under the collective bargaining agreement, an officer’s vacation time is based on months of continuous service in a prior year.

“I believe that the proration of his vacation was done in accordance with policies, practices and procedures that have been applied to all of the members of the Jamestown Police Department,” said Fiore-Lehman.

Wright’s attorney, Michael Macomber, said the verdict upholds the Uniform Services Employment and Re-employment Rights Act of 1994, which prohibits discrimination based on military service.

“I think that it’s important for our reservists to know, not to mention the employers, that they cannot discriminate against those people who leave their civilian lives to go serve our country,” said Macomber, Tully Rinckey senior associate.

Wright said seven years of litigation and two decades of discrimination have been difficult.

“In order for me to go away to fight a war over in Afghanistan or Iraq or other places and to have to be forced to come back to my civilian employment and be faced with another battle, it’s not a walk in the park,” Wright said.

After 7 years of litigation over vacation pay, employer slapped with more than $50K in liquidated damages

October 3, 2014– Buffalo, N.Y. – A Chautauqua Supreme Court jury on Thursday found the City of Jamestown Police Department willfully violated the employment rights of a detective by improperly pro-rating his vacation pay while he repeatedly served as a member of the Air National Guard between 2002 and 2011. The jury’s decision ends Lt. Col. Timothy H. Wright’s nearly seven-year legal battle against the city, which will have to pay liquidated damages, also known as “double back pay,” for willfully violating his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Tully Rinckey PLLC, which represented Lt. Col. Wright, believes he will receive liquidated damages in excess of $50,000. It has not been determined whether the city will be ordered to pay attorney’s fees.

Lt. Col. Wright began working at the Jamestown Police Department in 1987. He was deployed to Afghanistan in 2002 and Iraq in 2004. Upon returning to his civilian job, he received little to no vacation time for his periods of his military service. The city based the amount of vacation and leave to which Lt. Col. Wright was entitled on the number of days worked the previous year. However, this method of calculating vacation pay violated USERRA, which states qualified service members should be provided with the same amount of seniority and other rights and benefits they had when they went on military leave “plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.”

“The jury sent a clear message to employers: Employers should not trample the employment rights of service members, and there is a high price to pay for employers who willfully violate USERRA. I commend Mr. Wright for his courage in waging this legal fight, which will bolster the employment rights of other service members,” said Tully Rinckey PLLC Senior Associate Michael W. Macomber, who represented Mr. Wright.

Lt. Col. Wright filed his USERRA lawsuit in 2007, after again being called to active duty. The jury’s decision came two and a half years after the Chautauqua Supreme Court in Mayville, N.Y. on March 23, 2012 granted Lt. Col. Wright’s cross motion for summary judgment and said he is “entitled to receive his vacation and leave time as if he had been continuously employed.” The city appealed this decision and last June the Appellate Division of the Supreme Court of New York, Fourth Department remanded the case for trial.

Tully Rinckey PLLC employment law attorney Michael Macomber, Esq., answered listener questions on WGNA’s “Ask the Lawyer.” Mr. Macomber discusses being compensated with both “out of work pay” and “loss of use” Workers Compensation, New York State laws protecting military members and their reemployment once returning from leave and releasing private medical information to your employer.

Grab Bag

Integra Networks Inc. was named as the second-fastest-growing company in New York State’s Capital Region, according to the 33rd annual Inc. 500|5000, an exclusive ranking of America’s fastest-growing private companies. Integra Networks is ranked 1,532 nationally on the 2014 Inc. 500|5000 list.

It’s an Honor

Sasa Mirkovic and Darryl Teal, financial advisers and managing partners at the Mirkovic Teal Group, qualified for Ameriprise Financial’s 2013 Circle of Success annual recognition program. Only a select number of high-performing advisers earn this distinction.ć

Chad Jerome, an attorney at Cordell & Cordell’s Albany office, was named to the 2014 New York Super Lawyers Upstate Rising Stars edition.

Bond, Schoeneck & King PLLC announced that two attorneys from the firm’s Albany office were included on the 2014 New York Super Lawyers Upstate Rising Stars list: Michael D. Billok in the field of employment & labor and Matthew A. Young in the field of health care.

Three attorneys were listed in the 2014 New York Super Lawyers Upstate Edition: Nicholas J. D’Ambrosio in the field of employment and labor, and Stuart F. Klein and Arthur J. Siegel in the field of business litigation.

Nine attorneys were selected by their peers for inclusion in The Best Lawyers in America 2015 listing: Gregory J. Champion, Nicholas J. D’Ambrosio Jr., Robert H. Feller, Hermes Fernandez, Amelia M. Klein, John A. Miller, William E. Reynolds, Carolyn Shearer and Arthur J. Siegel Siegel was also named the Best Lawyers’ 2015 Albany Personal Injury Litigation — Defendants “Lawyer of the Year.”

Leonard D’Arrigo, a partner with Whiteman Osterman & Hanna in Albany, was named one of Super Lawyers’ 2014 New York Rising Stars.

]]>http://www.tullylegal.com/albany-ny/articles/around-tech-valley-5/feed/0How will medical marijuana use go over in the workplace?http://www.tullylegal.com/albany-ny/articles/how-will-medical-marijuana-use-go-over-in-the-workplace/
http://www.tullylegal.com/albany-ny/articles/how-will-medical-marijuana-use-go-over-in-the-workplace/#commentsThu, 28 Aug 2014 15:34:40 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=20600By Ryan Delaney August 28, 2014 While medical marijuana will soon be legal for some illnesses in New York, legal experts are warning there are some unanswered concerns over when and where it can be used. In about a …

While medical marijuana will soon be legal for some illnesses in New York, legal experts are warning there are some unanswered concerns over when and where it can be used.

In about a year and a half, people with illnesses like cancer or AIDS will be able to use medicinal marijuana legally for pain and loss of appetite.

But will those patients be allowed to be high in the workplace?

Labor attorney Michael Macomber, with the firm Tully Rinckey, says marijuana is still an illegal drug at the federal level after all.

“And so applying federal law, the Americans with Disabilities Act may not protect medical marijuana use,” he said.

Macomber says the courts will have to make a lot of the decisions over whether or not marijuana will allowed to be used on the job.

“The way this will be found out is an employee will test positive on a drug test, and the ADA is not going to protect them,” Macomber said.

New York is the 23rd state to legalize medicinal pot, but Macomber says it’s hard to look at other states for answers.

“The real question’s going to be, how is the New York courts going to apply the New York law with respect to this,” he said.

There’s going to be a lot of issues that are going to come out about it,” Macomber said. “I think the takeaway is that the legislature, recognizing that there may be some problems in the employment realm, they’re trying to stay ahead of it; they’re trying to think about these issues.”

Macomber advises potential future users of medicinal marijuana to have a conversation with their employers about the drug’s use before the law goes into affect.

The suit, filed on Wednesday, claims that Price Chopper was trying to cut labor costs by telling department managers that they do not qualify for overtime, even though they were allegedly required to work more than 40 hours a week and performed the same tasks as employees who accrue overtime.

The lawsuit names one plaintiff, Shelly Davine. She worked as a department team leader and a department manager in three price chopper stores in North Adams, Lenox and Lee, Massachusetts from 1983 through June 2014.

“What we allege is that in order to keep labor costs low, Price Chopper used team leaders and other to work lots of hours getting the work done in their departments, but without paying them the overtime they deserved,” explained Rachel Bien, who represents Devine and is heading up the class-action lawsuit.

A spokesperson for Price Chopper has released a statement about the suit:

“At this time, we haven’t been served with the complaint, so we have not had the opportunity to review the allegations. With regard to compliance with wage and hour laws, we are very familiar with their requirements and the analysis that must be done to make sure that employees are paid accordingly. We take our obligations to our employees seriously and take the necessary steps to ensure that we comply with the law.”

Price Chopper is facing a class action lawsuit after a Western Massachusetts former employee claims the supermarket chain failed to pay her overtime wages.

“When you punch that clock, what is it you’re doing between 9 and 5?” Michael Macomber, a senior associate for Tully Rinckey.

The answer to that question will become one of the main factors in a class action lawsuit involving supermarket chain Price Chopper and a former store employee.

“Your duties have to fall under certain duties requirements,” said Rachel Bien.

Attorney Rachel Bien is one of the people handling that lawsuit. Her client, Shelly Davine, worked as a team leader at three Price Chopper stores in the Berkshires.

Davine claims to have regularly worked more than 40 hours per week. But, she says she was never compensated for the extra hours because as a team leader, she was salaried and exempt from overtime.

“Those titles may be confusing at times,” said Macomber.

Macomber says what matters is what you do. In this case, Davine argues she worked the same duties as a regular hourly employee and thus, deserves the overtime.

“She spent the vast majority of her time providing customer service, working alongside overtime eligible workers, and doing the same kind of work they did,” said Bien.

Price Chopper released a statement, saying:

“With regard to compliance with wage and hour laws, we are very familiar with their requirements and the analysis that must be done to make sure that employees are paid accordingly. We take our obligations to our employees seriously and take the necessary steps to en sure that we comply with the law.”

“These types of cases happen everyday. Whether you’re a small employer or large employer, you can’t get out of having to pay that over time requirement,” said Macomber.

Davine aims to collect three years worth of overtime pay. She also hopes that several people in her position will join her case.

Small and mid-sized employers face the same risks as Price Chopper supermarkets and Stewart’s Shops — two of the largest private-sector employers in the Albany, New York area — when it comes to workers alleging they were not paid properly, attorneys said today.

For employers to protect themselves, the attorneys gave this advice: Regularly monitor and update job classifications when responsibilities or staffing changes; check the federal Department of Labor website to distinguish between ‘exempt’ and ‘non-exempt’ employees; and keep excellent payroll records.

“If there’s a Department of Labor investigation or a lawsuit, those records will be important,” said Ellen Bach, an employment attorney at Whiteman, Ostermann & Hannah LLP, the largest Albany-based law firm. “If there are no records, then there’s a presumption in favor of the employee.”

Bach and another local attorney not involved with the lawsuits filed against Price Chopper and Stewart’s — Michael W. Macomber of Tully Rinckey PLLC — spoke with me this week about the growing number of class action cases against private companies alleging violations of federal and state wage laws.

The number of lawsuits involving the Fair Labor Standards Act increased between 1991 and 2012, with the largest increases concentrated in a few states, including New York, according to a report issued last week by the U.S. Government Accountability Office.

Federal judges in New York and Florida pointed to the large number of restaurants and other service industry jobs in the states as one of the reasons for the spike in lawsuits, according to the report. Wage and hour disputes are common in those industries.

Macomber said another reason New York may have more of these lawsuits is state law enables plaintiffs to pursue lost wages over a six-year period, double the amount allowed by federal law.

“If you have a company in New York and can go back six years, that’s double the damages,” Macomber said.

Employers can run into legal problems if they wrongly believe an employee with supervisory duties is exempt from overtime. The federal test for distinguishing between exempt and non-exempt isn’t as simple as labeling someone a manager.

“I think a lot folks always assume if they are salaried they are not entitled to overtime, and if hourly they are,” said Ryan Finn, an attorney at Hacker Murphy LLP in Colonie. “Under state and fed law, the issue is whether someone is exempt or non-exempt, which is a multi-factored test related to your position, responsibilities and duties.”

Finn is representing a former Stewart’s employee who filed a $20 million federal class action lawsuit in January claiming she and other hourly employees were not paid for all of the time spent on the job.

Stewart’s, the convenient store chain, has filed a motion to dismiss the case. Oral arguments are scheduled to be heard Aug. 11 before U.S. District Court Judge Thomas J. McEvoy.

A separate lawsuit was filed July 30 in Massachusetts against The Golub Corp., owner of Price Chopper supermarkets. That suit was filed by a former supermarket department manager who claims she was not paid the overtime that she and others are entitled to receive. Price Chopper had not been formally served the lawsuit as of July 30, but the company said it complies with wage and hour laws.